Child pornography laws are primarily drawn from the "Protection of Children Against Sexual Exploitation Act" of 1977. This act targets persons who “transport, ship, receive, distribute, or reproduce child pornography” but precludes minors because they are the subjects of the pornography (Cornwell, 2013). Technology has certainly changed in the 40 years since the penning of this legislation. Many adolescents now have access to smartphones that, among other things, enable them to privately take and send sexually suggestive pictures and messages, or ‘sexts.’ Technically, this is in violation of child pornography laws.

While the U.S. Supreme Court ruled in Roper v. Simmons (2005) that adolescents are less criminally responsible than adults due to their “immaturity, transitory identity, and susceptibility to peer and environmental influences” there are many cases of teens being prosecuted more harshly than adults for statutory rape and sexting offenses.

Are child pornography charges the appropriatepunishment for adolescent sexting?

Statutory Rape Laws and an Excess of Legislation

In 1996 Bill Clinton signed into law the welfare reform act that obligated states to revise or expand statutory rape laws on the foundation that the issue was a matter of public health (Goodwin, 2013). Why does welfare reform concern itself with criminal statutes regarding sexual activity? The answer lies not between the sheets but in the product of sexual activity: babies. Children cost money. As young single mothers are more likely to need welfare assistance as they begin their difficult journey to adulthood, the hope is that by criminalizing the sexual activity that gives rise to those occasions, government resources will be spared and perhaps better distributed across the social spectrum. The perception that emerges is one of an economically prudent move to prevent future strains on an already overburdened welfare system (Cocca, 2002).

One could question whether the threat of being charged with statutory rape may be all an adolescent couple needs to strengthen their resolve to abstain until they can both give legal consent. Indeed, while the threat of harsh penalties is itself coercive and may deter behaviors identified in law as being criminal, the complexity of the human act of consent makes any attempt to criminalize such behavior at least equally complex. Many questions arise at this nexus. Is it appropriate that all underage sex be treated as rape? What happens to the young father now branded as a convicted sex offender? What employment options exist for this young family? Do the conditions of the father’s conviction alienate him from his children?

Suddenly, the legislative initiatives that seemed to protect adolescents from standing in line at the local social services office due to an unplanned pregnancy are cast in an entirely different light. Legislation which is not properly motivated is bound to have unintended consequences, and the criminalization of sexual behavior is an area of the law that is replete with many such consequences.

Many states now require the adolescent be between 16 and 18 years of age to legally give consent to sexual intercourse. This simple change means that many adolescents have been charged and convicted as sex offenders. In a sense, legislators artificially created more sex offenders and victims through this one change.

The legislation of sexual behavior is nothing new. The want and need to protect, prevent, or shelter young teens from sexual activity is also not unique to our culture. So how were statutory rape laws changed? Did the changes prevent teen pregnancies? Did the changes save the state money? The answer far more complicated than a simple yes or no answer. The age of consent is one of the small changes to statutory rape laws. Many states now require the adolescent be between 16 and 18 years of age to legally give consent to sexual intercourse. This simple change means that many adolescents have been charged and convicted as sex offenders. In a sense , legislators artificially created more sex offenders and victims through this one change.

While adolescents bear the brunt of the legislative action regulating sexual activity, there is respite for some teens that dare to violate the mandate to abstain. Age span legislation, while not in all states, can help to lessen the penalties on the “offender” if the sexual activity was consensual and the age difference between the couple was within a specified age range of two to four years (Richards & Marcum, 2015). Commonly referred to as Romeo and Juliet laws, age span legislation is a smart way to legislatively sift out the predatory relationships from the adolescent couples that are simply experimenting sexually.

Genarlow Wilson, a popular seventeen-year-old high school student, was sentenced to 10 years in prison following his conviction for having consensual oral sex with a fifteen year old at a New Year’s Eve party in 2003. Wilson was released in 2007 when the Georgia Supreme Court (Wilson v. State, 2007) determined that his punishment was “cruel and unusual” given the offense (Cornwell, 2013). Georgia law was updated after his conviction to lessen the severity of the punishment to a misdemeanor, but the change in legislation was specifically written to not be retroactive. Wilson’s appeal was finally heard due to the noise the media made when news about his crime and conviction surfaced. Had Wilson’s conviction not been vacated, he would have been required to register as a sex offender following his release, for a consensual act well within the normative boundaries of sexual activity.

In fact, the more I researched, the more I was overwhelmed with cases of absurd penalties levied on teens, a group notorious for their spirit of invincibility as well as their impulsive actions. Looking at the statistics, it is understandable that a teen is likely not to accurately judge the risk of being prosecuted for engaging in oral sex when seventy percent of 18-19 year old males have engaged in oral sex. A similar number, seventy-two percent, of females the same age have engaged in oral sex (Melby, 2006). Taking this into account, it is easy to see how legislative over-action has contributed to an increase in sex offenders and victims. Consequently, it becomes obvious to see why Goodwin (2013) described the prosecution of statutory rape law offenses as “the low-hanging fruit for prosecutors.”

"Sexting" and Mismatched Legislation

Another way in which legislation has artificially increased the number of sex offenders and victims is by not keeping up with technology and current trends. According to Cornwell (2013), a study conducted in 2008 revealed that 19% of teens under age 18 had sent a sexually explicit text message, or ‘sext’, and 31% had received a sext. The creation, distribution, and possession of nude images of minors is a crime, regardless of who took or sent the pictures. Using the strictest definition of child pornography, it is possible that an 18 year old be convicted of possessing child pornography if he or she receives a nude text from a boyfriend or girlfiend. “Sexting” between minors thus creates and distributes “child pornography”

When Alex Phillips’ sixteen-year-old girlfriend broke up with him, he reacted in revenge by posting two nude photos of her online. Phillips, then seventeen, was charged with possession of child pornography, sexual exploitation of a child, and causing mental harm to a child under the state laws of Wisconsin. He pleaded guilty to the latter charge in a plea bargain, a class F felony, and in return the state dropped the other charges. Phillips was sentenced to three years of probation and 100 hours of community service.

Sending and receiving sexts, for some teens, is seen as a status symbol. In a sense, some couples see the exchange of these photos as a way to obtain validation. Our culture oozes sexualized messages from every pore. Music and movies glamorize intimate relationships and trivialize sexual activity while adolescents desperately seek for ways to practice adult culture rarely stopping to think about the long-term consequences of pushing the ‘send’ button. A prosecuting attorney of several teen sexting cases, Rick Peters, called the receipt of a sext an “electronic hickey” (Hoffman, 2011).Continued on Next Page »

Kirsch, C. National Conference of State Legislatures, (2013). Sexting legislation in 2013. Retrieved from National Conference of State Legislatures website: http://www.ncsl.org/research/telecommunications-and-information-technology/2013-sexting-legislation.aspx

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